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Rosemary Maniscalco, Plaintiff-Respondent-Appellant v. New York City Transit Authority

May 8, 2012

ROSEMARY MANISCALCO, PLAINTIFF-RESPONDENT-APPELLANT,
v.
NEW YORK CITY TRANSIT AUTHORITY, ET AL., DEFENDANTS-APPELLANTS-RESPONDENTS.



Maniscalco v New York City Tr. Auth.

Decided on May 8, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Renwick, DeGrasse, Abdus-Salaam, JJ.

Order, Supreme Court, New York County (George J. Silver, J.), entered June 23, 2010, which granted plaintiff's motion for summary judgment as to liability and directed that the damages trial encompass the issue of plaintiff's fault, modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.

Although plaintiff presented uncontroverted evidence that the defendant driver negligently failed to yield the right-of-way in a pedestrian crosswalk, the record also raises -- as the dissent acknowledges -- a triable issue concerning plaintiff's comparative fault. The Court of Appeals held in Thoma v Ronai (82 NY2d 736 [1993], affg 189 AD2d 635 [1993]) that, even where the record establishes the defendant's negligence, the plaintiff is not entitled to summary judgment as to liability where a question of comparative fault must be resolved at trial. Although a different panel of this Court declined to follow Thoma in Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [2010]), the Thoma holding is recognized and followed by the Second Department (see Roman v A1 Limousine, Inc., 76 AD3d 552 [2010]) and, very recently, by yet another panel of this Court in Calcano v Rodriguez (91 AD3d 468 [2012])[*fn1]. While Thoma mandates the modification of the order appealed from to deny plaintiff's motion for summary judgment as to liability, we affirm the order insofar as it directs that there be a trial of the issue of comparative fault.

The dissent cannot reconcile its result with the Court of Appeals' holding in Thoma by pointing to the fact that the briefs in that case used the outdated term "contributory negligence" when discussing the issue of the plaintiff's fault. The comparative fault regime of article 14-A of the CPLR (enacted by L 1975, ch 69) was the law in 1993 as it is today, and, in deciding the case, both the Court of Appeals (82 NY2d at 737) and this Court (189 AD2d at 636) referred to the issue as one of "comparative negligence." Nothing in these decisions or in the parties' briefs indicates that either the courts or the parties contemplated bringing back to life the by-then long-dead "contributory negligence" regime, under which a claimant was totally barred from recovery if his or her own negligence contributed to the causation of the injury. That the parties in Thoma did not cite article 14-A or CPLR 1411 indicates only that in that case, as in this one, there was no dispute as to the applicability of the comparative fault regime. As on the instant appeal, the only dispute at issue on the appeal in Thoma was whether the plaintiff was entitled to summary judgment as to liability.[*fn2]

It does not avail the dissent to defend its position on the ground that, to win summary judgment as to liability, a plaintiff must show both that the defendant was negligent and that such negligence was a substantial factor in causing the injury. The point of Thoma and its progeny is that, where there is evidence that both the defendant and the plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party's "liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the [other party] was also culpable" (Tann v Herlands, 224 AD2d 230, 230-231 [1996]). Stated otherwise, in determining whether one party's conduct was a legal cause of the injury, the possible causal role of the other party's conduct should also be considered.[*fn3]

We fail to see how our position is "at odds" with the hornbook principle that to establish a prima facie case, "the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Notably, in the quoted statement from Derdiarian (a decision on an appeal from a judgment based on a jury verdict that resolved any issue as to the plaintiff's fault), the Court of Appeals was describing the plaintiff's burden to establish a prima facie case at trial, not the showing required for granting a plaintiff summary judgment as to liability. On this appeal, the question is, where there is evidence in the pretrial record that more than one party's negligence may have caused the injury, is it appropriate for a court to rule as a matter of law that one of those parties caused the injury? Under Thoma, the answer to this question is "no."

Given Thoma's holding that, in a case like this one, the causal role of each party's conduct should not be determined in isolation, CPLR 3212(e) (which was also on the books when Thoma was decided) has no bearing on the disposition of this appeal. We note that the concurrence in Calcano took the position that a plaintiff unable to eliminate an issue as to comparative fault may be granted summary judgment solely on the issue of the defendant's negligence, but not as to liability, which requires a determination on causation (see 91 AD3d at 472 [Catterson, J., concurring]). As noted by the Calcano majority, this approach is also inconsistent with Thoma and, moreover, would "presumably entail[] a highly confusing jury instruction, [while] not yield[ing] any significant benefit in terms of judicial economy or fairness to the parties" (id. at 470).

Finally, the dissent's reliance on Soto v New York City Tr. Auth. (6 NY3d 487 [2006]) and on a number of recent Second Department decisions is misplaced; none of those precedents supports the dissent's position on the issue presented by this appeal, either expressly or by implication (see Soto, 6 NY3d at 491 [describing the jury verdict allocating fault on which the judgment being affirmed was based]; Mikelinich v Caliandro, 87 AD3d 99 [2011] [denying a motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7); summary judgment for the plaintiff was not at issue]; Nash v Port Wash. Union Free School Dist., 83 AD3d 136, 145, 151 [2011] [affirming summary judgment as to liability for the plaintiff where, although the defendant "asserted that there were issues of fact as to . . . comparative negligence," inter alia, "(i)n opposition to the plaintiff's (motion), the (defendant) failed to raise a triable issue of fact"]; Stanford v Dushey, 71 AD3d 988, 988 [2010] [affirming summary judgment as to liability for the plaintiff where "the defendants' contention that the plaintiff may have been speeding or may have been negligent . . . was speculative" and "the defendants failed to establish that additional discovery would yield any facts indicating that the plaintiff was at fault and justify the denial of the plaintiff's motion"]).

It is with great reluctance that we decline to follow our recent precedent in Tselebis, although, at this point, the dissent is not following our even more recent precedent of Calcano. The pertinent point, we believe, is that Tselebis is inconsistent with Thoma. As things now stand, differing panels of this Court have reached divergent conclusions on this issue. The question obviously calls for resolution by the Court of Appeals. All concur except DeGrasse, J. who dissents in part in a memorandum as follows: DeGRASSE, J. (dissenting in part).

The issue on this appeal is whether, under CPLR 1411, comparative negligence has any bearing on a defendant's liability in a negligence action. The question should be answered in the negative for the reasons set forth below.

Plaintiff, a pedestrian, was struck by the side-view mirror on the driver side of defendants' van as she crossed an intersection within a crosswalk with the light in her favor. Defendant Stokes, the operator of the van, was making a left turn when the accident occurred. The motion court correctly granted plaintiff's motion for summary judgment, finding no issue of fact as to whether Stokes was negligent in failing to yield the right of way and whether his negligence was a substantial factor in bringing about the accident (see e.g. Gonzalez v ARC Interior Constr., 83 AD3d 418 [2011]). On this appeal, defendants do not challenge the court's findings that Stokes was negligent and that his negligence was a proximate cause of the accident. Instead, defendants argue that Stokes's failure to yield the right of way is not determinative of the issue of his negligence and that questions of fact regarding the pedestrian-plaintiff's negligence preclude summary judgment. ...


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